**5.1 Brand**

A brand of a good is an exemplified example to be conceived as a non-physical attribute of the goods. By definition, a 'brand' is a commercial concept that describes' the impression of a product in the minds of potential users or consumers'. This explains the more reason why the wide sale of certain goods in some international markets is due to the strength of their brand and reputation publicised by mass advertisements and persistently demanded by a group of customers. That is why it is common today to find consumers in places across the world wearing, driving and drinking the same brands of certain goods [18]. This is considerable evidence that quality variation is greater in group unanimity than in personal preferences over certain goods [19]. This is another clear indication of the fact the commercial buyer of goods in her business will be seeking to conform to group norms.

Brand is conceived as an attribute of the goods, rather than something external to them31. Related to this is the notion of 'brand equity'. The brand equity in a

**253**

of the true owner.

**standard**

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

long standing brand [20].

will' [21].

good is measured by the difference between the inherent value of the good and the perceived value (or market value) of the good. Another justification for this is the public habits and beliefs in certain virtues of these goods, which have stood their test of time. Such a picture is typical in Cameroon where from socio-economic and psychological perspectives, the purchasing public still hold tight to the buying of some goods of old reputable trademark or taste. For example, certain brand of goods such as, shoes like "pierre cadin" from France, "clarks" from England are still believed to be durable even sold as used goods. The sale of used goods or second-hand goods is an everyday practice where is visible to find a line-up of stores in Cameroonian cities such as Douala and Yaoundé operating in this trade. Goods vary from cars, household equipment to consumer goods. Based on observations from field trips conducted by the researcher in the above mentioned cities, it was gathered that consumers prefer certain used goods irrespective of their diminished quality and safety but rather simply because of their cheap prices, accessibility and

The law recognises that reputation and customer awareness are worthy of protection by allowing the enforcement of intellectual property rights. Although it is not a legal concept, brand equity has been referred to as being '[a]t the core of a trademark's value and a manifestation of the legal concept of trademark good

obligations in relation to trademarks and other intellectual.

*collect the goods under such conditions.*

The branding and reputation of the goods are connected to intellectual property in the goods. The seller's duties in respect of conformance and intellectual property rights are interrelated rather than mutually exclusive. Certain characteristics of the goods may indeed be relevant to both duties. As will be demonstrated, the UAGCL's provisions relating to intellectual property are apt to deal only with the existence of certain non-physical characteristics of the goods. The content of those characteristics must be dealt with under the principle of conformity. The seller has express

property rights under Article 260(1) UAGCL: *the seller shall deliver the goods with the assurance that no third party has a right or claim to them, unless the buyer accepts to* 

From a reading of Article 275 UAGCL, it is clear that the main purpose and effect of the seller's duty to deliver is to require the seller to transfer the property or title to the goods to the buyer. This implies that the seller should not necessarily be the owner of the goods. The fundamental requirement here is to qualify the seller's right to sell and also the third party's right(s) over the goods. As concerns the seller's right to sell, the seller must not necessarily be in the possession of the goods and be able to transfer property to the buyer. To avoid any third party's claim, the seller must be the right holder of some patent, trademark or other proprietary interest over the goods. Any possibility for the third party to have access to the goods on such reasons will amount to a defect in title and the seller will be liable for this. The essence here is for the seller to be able to transfer to the buyer a title overriding that

**6. Burden of proof for the non-conformity of the goods with the** 

As a general principle, the allocation of the burden of proof under the Act, seeks to know whether or not the goods are presently in conformity with the applicable standard as contained in Article 255. This mostly guided by the principle of proof proximity, which states that conformity or non-conformity of any good is determined by the individual who is in possession of the said good. This means that when

<sup>29</sup> Ibid, 438.

<sup>30</sup> Ibid, 438.

<sup>31</sup> Oxford English Dictionary (2nd edn, 1989), s.n. 'brand'.

#### *Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

*Banking and Finance*

and 239 of the UAGCL.

non-physical.

**5.1 Brand**

attributes are conceived of as part of the goods.

<sup>31</sup> Oxford English Dictionary (2nd edn, 1989), s.n. 'brand'.

This goes a long way to improve on the quality of goods which the end users would obtain from commercial buyers. Respect of such a measure is left at the wishes of the parties in a contract of sale or could be implied from the trade and usages of specific goods in a given branch of business. This is the very meaning of Articles 237

**5. Conformity and other related concepts as characteristics of the 'goods'**

business practice the parties have full knowledge of when contracting. In some cases, certain states of affairs may be so inextricably linked to the goods as to be 'non-physical characteristics' of the goods. In this regard, the parties may in concluding their sale insist on some features connected to the goods but are not physically part of the goods. These could concern the tangible and intangible things connected to the good. Nevertheless, the dichotomy between intrinsic and extrinsic characteristics of a 'good' is fundamental in determining the functionality of the goods. In effect, these characteristics are broad and can be described in various terms, for example, intrinsic/extrinsic; embodied/unembodied; tangible/intangible; corporeal/incorporeal; objective/subjective; real/intellectual and physical/

Generally, goods have certain defined physical characteristics which in everyday

A key example of non-physical characteristics that the parties may view as part of the goods emerges from the field of marketing. In that field, '[the idea of tangible and intangible attributes [of goods] is well established' [17]. Tangible characteristics are those that 'are physically present or can be seen, experienced or measured in some way'. Intangible characteristics, such as reputation, quality image, and country of origin, are 'understood using cognitive processes and also often contain an emotional dimension'29. It should be stressed that these intangible characteristics most impact the consumer behaviour in guiding their choices of goods they buy. It, therefore, ascertains the economic value of goods30. Hence, these non-physical

A brand of a good is an exemplified example to be conceived as a non-physical

Brand is conceived as an attribute of the goods, rather than something external

to them31. Related to this is the notion of 'brand equity'. The brand equity in a

attribute of the goods. By definition, a 'brand' is a commercial concept that describes' the impression of a product in the minds of potential users or consumers'. This explains the more reason why the wide sale of certain goods in some international markets is due to the strength of their brand and reputation publicised by mass advertisements and persistently demanded by a group of customers. That is why it is common today to find consumers in places across the world wearing, driving and drinking the same brands of certain goods [18]. This is considerable evidence that quality variation is greater in group unanimity than in personal preferences over certain goods [19]. This is another clear indication of the fact the commercial buyer of goods in her business will be seeking to conform to group

**252**

norms.

<sup>29</sup> Ibid, 438. <sup>30</sup> Ibid, 438. good is measured by the difference between the inherent value of the good and the perceived value (or market value) of the good. Another justification for this is the public habits and beliefs in certain virtues of these goods, which have stood their test of time. Such a picture is typical in Cameroon where from socio-economic and psychological perspectives, the purchasing public still hold tight to the buying of some goods of old reputable trademark or taste. For example, certain brand of goods such as, shoes like "pierre cadin" from France, "clarks" from England are still believed to be durable even sold as used goods. The sale of used goods or second-hand goods is an everyday practice where is visible to find a line-up of stores in Cameroonian cities such as Douala and Yaoundé operating in this trade. Goods vary from cars, household equipment to consumer goods. Based on observations from field trips conducted by the researcher in the above mentioned cities, it was gathered that consumers prefer certain used goods irrespective of their diminished quality and safety but rather simply because of their cheap prices, accessibility and long standing brand [20].

The law recognises that reputation and customer awareness are worthy of protection by allowing the enforcement of intellectual property rights. Although it is not a legal concept, brand equity has been referred to as being '[a]t the core of a trademark's value and a manifestation of the legal concept of trademark good will' [21].

The branding and reputation of the goods are connected to intellectual property in the goods. The seller's duties in respect of conformance and intellectual property rights are interrelated rather than mutually exclusive. Certain characteristics of the goods may indeed be relevant to both duties. As will be demonstrated, the UAGCL's provisions relating to intellectual property are apt to deal only with the existence of certain non-physical characteristics of the goods. The content of those characteristics must be dealt with under the principle of conformity. The seller has express obligations in relation to trademarks and other intellectual.

property rights under Article 260(1) UAGCL: *the seller shall deliver the goods with the assurance that no third party has a right or claim to them, unless the buyer accepts to collect the goods under such conditions.*

From a reading of Article 275 UAGCL, it is clear that the main purpose and effect of the seller's duty to deliver is to require the seller to transfer the property or title to the goods to the buyer. This implies that the seller should not necessarily be the owner of the goods. The fundamental requirement here is to qualify the seller's right to sell and also the third party's right(s) over the goods. As concerns the seller's right to sell, the seller must not necessarily be in the possession of the goods and be able to transfer property to the buyer. To avoid any third party's claim, the seller must be the right holder of some patent, trademark or other proprietary interest over the goods. Any possibility for the third party to have access to the goods on such reasons will amount to a defect in title and the seller will be liable for this. The essence here is for the seller to be able to transfer to the buyer a title overriding that of the true owner.
